What Murky Mess the City Council Curmudgeons Have Weaved for Themselves

by jhwygirl

And so it appears that is exactly what the lawsuiters are thinking with this past Monday’s op-ed in the Missoulian, what with the first paragraph:

A June 18 guest column contains inadequacies we would like to address. None of the signors of the June 16 guest column ever said to scrap Title 20. In fact, at the June 17 Planning and Zoning Committee meeting, we publicly stated that fact. We all agree that Missoula needs an updated, more coherent document. Some of us who were on council and some of those who are no longer voted for a rewrite of the municipal code, not a rezoning of the entire city. Big difference.

Sounds a bit overly defensive to me….

It continues: “No one is arguing that Office of Planning and Grants staff held many meetings and tried to reach out to the citizens,” and “It is not our claim that the efforts to update the ordinance is illegal,” and “The fact that the city attorney wrote six legal opinions still does not get us there.”

They attempt to justify the lawsuit that they’ve filed:

Some council members asked for a second opinion to get clarification as to whether Title 20 was a rezoning of the city. We were refused and stonewalled. At the March 3 Planning Board meeting, some members also called for a second opinion so all their hard work would not end in a lawsuit. The Planning Board did approve its version of the rezone unanimously, with three members absent.

Seriously? Not only do they have Nugent’s 6 opinions, they’ve got the opinion of attorney Alan McCormick (who hasn’t exactly been friendly to some of city council’s decisions) and even the Missoula Building Industry Association’s attorney kicked in with some sort of an opinion, too, that the rewrite wasn’t a rezoning.

Methinks that cracks are appearing in some of the curmudgeon’s re-elections…which is why the “clarifying” op-ed appeared on Monday.

Hear the laughs? I do.

The Republican’s have Teabaggers, Missoulians have Lawsuiters.

Ward 6 councilor Ed Childers summed it up pretty well at this past Monday’s weekly public hearing (and I’m working off of memory here) – that the ones that have filed the lawsuit and the ones that have been critical of it simply don’t understand zoning – and that the very potentially unfortunate thing of it is that it may result in a scraping of Title 20 because the level of remediation it seeks. That contact to each and every landowner in the city informing them, specifically, of how the re-write will affect them, specifically – is an impracticable and extremely costly mitigation.

And somewhere in there Childers mentioned the consultant’s cost of (what I think was) $250,000.

(Title 19 is our current code, Title 20 being the re-write.)

Pretty spot on – I’ve watched Renee Mitchell, week after week after week after month calling for people to come to the meetings; saying it was an upzoning (accessory dwelling units, which currently exist all over – including the university district); and saying that it increased heights of buildings (patently false).

Mitchell has all the trepidation of a 98-year old woman navigating an unpaved parking lot with a walker. She’d rather not go there, and so she is attempting to find any way possible to do exactly that.

The source of her pleas and Wilkins’ and Hendrickson’s and Haines’ and Hellegaard’s – let’s be real here – is based on what they have all clearly been seeing: That the public was in support of the zoning rewrite. Renee (and others) don’t like that – and so, for them, it was easier to ignore that reality and instead act as if this whole rewrite process was going on in some sort of vacuum.

– and you know how ignorant Missoulians are to what is going on in zoning, right? /snark

Have any of these malcontents (Ward 2’s John Hendrickson, Ward 5’s Renee Mitchell and Dick Haines, and Ward 4’s Lyn Hellegaard and Jon Wilkins) bothered to check out that big ole’ 5 inch think zoning book that OPG’s planner Jen Gress carries with her to each Planning and Annexation Committee hearing each week? It’s right there across the table from them. Every week. That is the current zoning book that OPG has to work with – filled with interpretations, it is result of an outdated and poorly written Title 19. That 5 inch thick book represents the murkiness that is Missoula’s current zoning code. That 5 inch thick book represents uncertainty for neighborhoods and builders and businesses.

It’s unreal that these city councilors have taken us in this direction.

And let’s be clear, here – Hendrickson didn’t sign on to this thing because he’s running for re-election. Hendrickson had tried for months trying to round up support in his neighborhood against the zoning rewrite – he tried to get people to sign that anonymous petition – and he got no where.

It was politically expedient for Hendrickson to attempt to remove himself from the lawsuit, but people aren’t buying it. Which is clear by his signature this week on the first post-lawsuit-filing op-ed.

Haines, who’s also running for re-election, at least had the guts to stick to his convictions, miscalculated as they are.

Wilkins, I suspect, isn’t a lawsuit type of guy – but he has signed on to the recent editorial, along with the previous one to which they were seeking to clarify.

Wait – did these guys and gals just want to clarify that which they previously wrote? Rewrite their past inadequate column?


Hypocrites that are going to stagnate this city, perpetuating uncertainty for neighborhoods and business.

Hypocrites that are going to cost Missoulians over a year of lost OPG staff time, significant community investment in time and involvement – and a cool $250,000 in the process.

Not to mention the staff and attorney time it’s going to take to defend this thing. Hell, I bet the city’s insurance that kicks in to help defend these kinds of things is going to end up costing us more, too.

Pro-business fiscal conservatives my ass.

  1. malefactor

    Anyone want to counter-sue these guys? I’m in. As an aside, it’s funny that we can waste hundreds of thousands of dollars defending this kind of junk and there’s absolutely no teabagger outrage over the “gov’t waste”, but they get all hot and bothered when you want to take care of sick kids.

  2. Thomas Paine

    You’re being kind in your analysis. The minority in the council is in THE MINORITY. That means they don’t get what they want, which is to try to keep Missoula locked in the 1950’s. They sued to kill all this work and waste all this money and effort, pure and simple, despite their weak protestations to the contrary. And Renee Mitchell acts like that about everything. Ever notice how they keep saying it’s about the process but then they complain about the substance. They’re nothing but the Party Of No at the local level.

    • Renee Mitchell is like that about everything. I find it more than extremely annoying and how people can sit there and endure that week after week, twice a week (at least) is an example of sainthood. She can’t even listen…she asks questions that have been asked and answered…oh…I could go on forever.

      Party of No is right.

      Change is happening. The world changes, every single day, but somehow this escapes them.

  3. Chuck

    Where is the Progressive outrage over the waste of $75,000 for a “review” of the Russell Street project despite 10 years of neighbors working together with 2 engineering firms and the city to come up with a plan that was in the best interests of all Missoula, not just the special interest groups represented by the Progressives? Let’s see if the Progressives sue to stop any plan for Russell St. coming out of this that doesn’t go their way. I would be okay having the Conservatives on the council spend $75,000 to hire a firm of their choosing to do a “peer review” of the rezoning process in exchange for them dropping the suit. Sound fair to everyone?

    • JC

      Um, the Russell Street project is guided by an Environmental Impact Statement, complete with a variety of alternatives and opportunities for the public and special interests to weigh in–and appeal and/or sue.

      The lawsuitarians, on the other hand are just 3 disgruntled city employees and public servants who didn’t get their way. If there is a legitimate legal argument to be made against the rezoning process and its outcome, much better that it be handled by a private sector or public interest legal challenge.

      You know, separation of powers and all.

    • Gosh, do you think the lawsuit and the review might be delaying tactics? You know, as in the more time people have the more they might find problems with what is being proposed. Standard political tactic #5.

  4. Heidi Kendall

    Thanks for this good explanation, jhwygirl. Kudos to you for taking the time to understand and articulate what’s going on here.

  5. Chuck

    After years and years of community consensus building and 2 engineering studies on Russell the EIS process ended with a preferred alternative. The progressive special interests didn’t like the preferred alternative so rather then sue they are further delaying construction and wasting $75,000 in an effort to have a new engineering team rationale what they want for their special group.
    Jerry Ballas sued his employers because he saw an injustice and felt the council was wrong. He won.
    Unions sue their employers when they believe the employers are wrong and I would fight for their right to do so.

    • Ed Childers

      Chuck, wouldn’t it be neat if, like, Dick Haines voted to get the “second opinion” on the Russell/Third EIS, and if I, like, voted not to do it?
      Would that help break open the hard and fast categories that often get used?

    • JC

      “After years and years of community consensus building and 2 engineering studies on Russell the EIS process ended with a preferred alternative.”

      Maybe in your alternate universe the “EIS process ended.” Russell Street is still in the Draft EIS phase, last time I looked.

      Preferred alternatives are not always the final alternative. After analysis of impacts and public comments, and some changes, the Final EIS will be released (with or without a final alternative). Then a Decision Notice will be signed (which will contain the Final or Preferred Alternative) and published and the EIS will be open to review and appeal for a period of time. A DN does not have to accompany the Final EIS, though it usually does.

      NEPA 101. Read it.

      Oh, and you can’t sue the feds until a DN has been published, appealed, and all other administrative options have been exhausted. But you’re always free to beat up on the EIS team on their range of alternatives and preferred alternative as much as you want. And it is good for the EIS team to listen to all those concerns. Because it helps to avoid getting sued when you release your DN.

      So, it really does no good to compare City Council process with that of an EIS. Apples and oranges.

    • jhwygirl

      gee – I thought the folk in Helena were smarter than us pot-smokin’ hippies down here in Missoula. You’ve proven me wrong.

      There’s some snark in that statement – I’ll let you try and figure out what is what….

      Chuck? At least try and get your facts right. The “preferred alternative” was the cheapest. Plain and simple. Its choice had nothing to do with the preferred community consensus that came out of years of meetings and its choice had nothing to do with the cities master transportation plan – it was what it was based on cost and that was it.

      As Ed points out, conservative ‘leader’ on the council, Ward 5’s Dick Haines voted for spending the $75,000 to have an outside engineering firm look at the draft EIS, and I take it from what Ward 6 councilperson Childers – one of what a lot of you regressive types would call a liberal – voted against spending that $75,000.

      JC, of course, is pointing out your errors on the technical side of NEPA…

      So, please – I take the time and effort to try and be at least a little bit factual when I’m here editorializing. I’ll ask that you do the same – even if you are up in Helena.

      Google is your friend, brother. Hell – we even have a nifty ole’ search engine here (over there on the top of the page, to the right) that’d given you some of that information.

      • another thing? I get that you want to defend your man Haines and his cohorting Lawsuiters, but sometimes wrong is wrong.

        They know it, we know it, and a whole hell of a lot of Missoulians know it.

        And it bears repeating: Pro-business fiscal conservatives, my ass.

  6. Thomas Paine

    What’s the difference between the Russell EIS peer review and the lawsuit? Well, the single biggest difference is that a MAJORITY of the council voted in favor of the peer review.

    Funny how democracy works in that way.

    The Russell EIS peer review is also the result of the *failure* to build a community consensus because the methodology presumed the way to plan for future growth is to build more lanes for cars and tear down anything in the way of that. The “preferred alternative” was from a list of options that all only took a build-more-lanes approach, and is vehemently opposed by a variety of community groups.

    Should the peer review conclude there’s a more elegant way of addressing the situation, and the 3+ plan shows there is, the cost of the peer review will be paid for several times over. And since it’s a $40+ million project, spending an extra $75k to get it right, either by confirming the initial more-lanes proposal or by fine-tuning it for a broader transportation solution, is a small price to pay.

    OTOH, the lawsuiters are in the MINORITY. And should they succeed in killing Title 20, two years of work, hundreds of hours of staff time, and $300k+ of money will be thrown away.

    Anyone who can’t see the difference between these two things only demonstrates how well ideology trumps rational thought.

  7. Chuck

    I respect your opinion Mr Paine and accept that our ideologies probably don’t exactly jive.
    Sometimes the majority is wrong. I give you 8 years of being wrong by G W Bush. I wish somebody from the minority would have sued and won. We could have saved lives.
    If you are truly concerned about wasting taxpayer money please watch tonight as the majority on council and their same special interest groups take 400,000 dollars out of the city coffers and give it (loan)to their buddies , the North Missoula Community Development Corp. But it’s ok because he’s your guy. I get it.

  8. Chuck

    Sorry if I am misinformed but their seems to be a news block on this one and I can’t seem to open the link , can you post it?
    I get my news from you guys, the right winger site, New West and the Missoulian and there has been no questioning of this bailout. I suspect there are lots of interrelated parties voting and the Dick Cheney stealth appropriation seems like the right thing to do. The left and the right supported this.

  9. Chuck

    Thanks I found it. OPG is asking for a $400,000 on behalf the North Missoula Community Development Corp, Burns St Commons development project because they aren’t selling. I think there is a reason for that far beyond ‘the economy”.The bailout money would come from the Title One Fund. Obvisously if this group takes the majority of the money from this fund , which well managed and thoughtful groups are going to be denied access? My assumption is if OPG gets the money ( and what’s that about?)for NMCDC then another worthy organization will be unable to do their work. Should there be a community discussion whether this Burns Street condo speculation deal and the NMCDC is THE organization to reward with the majority of the money in the Title One Fund? The bank apparently thinks this is a bad investment otherwise they would refinance. The NMCDC has a questionable business plan in a good market, why don;t we fut our losses and look for another smart, financially viable operation to invest in affordable housing. The least we can do before making a 400k investment is complete an independent audit of NMCDC.

    • Honest to God, I have to ask: Are you even capable of putting your pants on in the morning, or does someone have to give you step-by-step instructions?

      I asked you to read. If you had read that, You’d know that the Title One funds come from the U.S. Dept. of Housing and Urban Development.

      Now this, I admit, you wouldn’t find easily, but……those funds are earmarked for subsidized affordable housing. Subsidized affordable housing being that available for those under 80% of the median income.

      BANKS aren’t going to refinance it – mainly because they really aren’t financing much at all. Even in the regular market place – and especially if you are a first time homebuyer. I know. I’d like to be one. Go to a mortgage lender, and unless you are solid 24K gold credit rated, you are going to have a hell of a time getting a loan. Few, if any, first time homebuyers got that, because in order to get that solid 24K gold credit rating, you gotta have a house.

      Catch 22, get it?

      NMCDC got caught – remember, building a housing development (essentially a subdivision) take a few years. So they were building before Rome burned.

      Those homes can’t be sold at market – frankly, I asked – because any subsidy they got would have to be given back or something like that. And they wouldn’t sell at market, even if they took that road. Get it?

      So, until credit loosens up – and this is going to take people trusting in the marketplace and investing in stocks and that ain’t happening right now – everything (i.e., the whole investment market) is going to be tight.

      You want an audit of NMCDC? What? Does Bob Oaks have a Mercedes stashed somewhere? Is the staff out dining at Finn & Porter? You’re assailing something based on tin foil hat dreams. Lay off whatever it is your smokin’, or share it with everyone.

      As an aside, perhaps people aren’t trusting in the markets because Wall Street has proven itself to be undeserving of that trust..and with the 2nd quarter profits being announced – huge amounts for banks operating under bailout monies – they’ve got a darn good right for thinking that way, IMNSHO.

      We’ve yet to get reform. We’ve yet to eliminate derivatives…and until then, things are what they are.

  10. Chuck

    Please relax.
    I am an advocate for affordable housing and in my past life have split off lots and built houses (4) for employees at cost. That included thousands of hours of sweat equity and free machine time,extra lumber, windows, doors, cabinets etc. Free electrical and plumbing subs. The custom homes subsidized the workforce housing ,that’s the way it is supposed to work and many builders do this. These folks are hundreds of thousands of dollars better off now and they were set for life. In turn , they were long term successful employees and friends and I had a succesful business.. I had an Obama sign in my yard last fall and donated. Worked downtown at the HQ. I frikkin get it girl and we are in agreement that our teachers and cops need houses. Please try to listen with an open mind.
    We have failed in this town on affordable housing for 30 years. We differ on how to get there maybe but we need to get there. There are lots of ways to get there that aren’t being discussed because we are polarized and in a rigid mindset funk and don’t trust each other. I hate that.
    I don’t like incompetence or failure. I work hard and hate wasting money that should go directly into the homes for our teachers and cops, that’s it.
    There may be other ways to spend 400k to successfully solve our affordability. This Burns Street Commons and the NMCDC may not be the answer. I know the city and interrelated parties have a lot invested and I don’t discount that. Perhaps it didn’t work. Perhaps we can try something new. Perhaps while everybody s running around like the world is ending it is the best time to come up with some new ideas instead of throwing 400k away to the bank.
    Here’s one thought. The condos aren’t selling. Reduce the price. How do you do that? Ask the city council to go back and refund every building permit fee, sewer fee, impact fee, zoning compliance fees, engineer fees, hook up fees, curb sidewalk, fencing fees, building inspection fees etc. fire sprinkler fees, etc….Ask for 20,000 per unit in waivers. That brings the price down to 79,000. Ask the NMCDC to refund all general expenses , administration , planning and prep costs, and “Development Fees” or profit that they took out as the developer if they charged them. NMCDC has to share the pain and use some other funds to cover their losses. Homeword makes a ton of money on development fees. Say that adds up to another 10 grand so you are at 69,000 for a list price. Audit the financing and see what the bank has been paid in interest so far on the project. Go get the interest back from them. Hardball them. The mayor can do it. My guess is 5,000 per unit in interest thus far. The bank doesn’t want these things and they don’t want the units back and they are supporters of the community. They will do it “for the children”. I’ve dealt with them. I’ll frikkin do it if needed. That puts the units at 64,000. Go to the schools and find some school teachers to buy these things. Teachers don’t make sht so they qualify and are Golden in credit. Ask the school board to co sign if needed. If District 1 is too big and clumsy to make a decision go to a small district where they aren’t afraid to be ballsy. Beg a broker to sell them for free. Sell these things before winter and help solve the problem. Don;t rent them out for gawds sake. When we’ve done a poor job of managing we don’t take on more management. Make selling and shutting this deal down BOB’s only job, nothing else. Beg people to buy them. FOCUS PEOPLE and smile because the world won’t end. Do anything you can do to not have to take more Government money. Your credibility is at stake. Get the Board out every weekend selling these things, cleaning up and manning the open houses. If they won’t take personal responsibility for this project replace them. Suspend the sign ordinance and put up some banners and flags. The place looked deserted last weekend.
    The audit issue is not an attack on anyone. Group think and busy preoccupied board members can’t watch everything and people avoid failure like the plague and often hide it. Look at Missoula Housing Authority. Get some new ideas in there and think outside the box. The parties have all been to the same conferences ,read the same journals the same blogs about how great this idea was, is and belong to the same party. They are in a rut and paralyzed is my thought. They have become bureaucrats and are no longer entrepreneurs. it shows with the marketing folks, sorry. Lower income people do not understand financing people,they wouldn’t need financing if they did but they do understand granite counters and stainless appliances and a cool little balcony to bar b que on. You need an aggressive real estate and loan originator to do EVERYTHING for your buyer. You need to create a sense of urgency to your sales instead of announcing to the world that you can hang in there for three more years now that you have 400k of the city’s money. . What is everyone going to do? Wait for your price reductions this winter or next.
    Do an audit, a marketing consult and a management consult from somebody new and with different life experiences. This would be a good thing. DON’T PAY FOR IT for gawds sake. These guys get a ton of work from you so get some back now when you need help. Business people will help if you ask them. They will get sht done if you ask them and get out of the way.
    My gut tells me that this is a classic case of a really tough environment with the last 5 % of the work to go and people are tired and sick of the damn things., Maybe they are chasing the new million bucks and are working on the new “fun project” because Burns Street is broke and we can’t bill out that lunch expense to them.
    So just do some serious business stuff and brag about the reorganized project and turn down the cash. Thank you for sharing your blogspace and I still believe that Missoula is a community that can work together.

  11. Jim Lang

    Well, I’ll just make a comment about affordable housing, I recently sold my house, (not really my choice), I so wanted to move to Missoula. Well, I don’t make a lot of money. Supposedly you aren’t supposed to spend more than one quarter of your income on housing. Well that is obviously nowhere near realistic for me, so I was looking for places up to 60%. There are some, but not that would work for me and my dog. I ended up renting a place from a friend out in Frenchtown. So I’m still going to be having to drive my car all the time. Arggh.

  12. Lizard

    interesting flying of sparks, and interesting points.

    but, chuck, while you go micro on what NMCDC should do to make burns street more affordable, i think you are underestimating the macro shit storm that’s been simmering and bubbling for decades.

    and let’s be realistic, what will the builders/investors sitting on empty condos do now that the boom is over? will they allow prices to drop, or will they do everything they can to protect the inflated value of their investments?

    The parties have all been to the same conferences ,read the same journals the same blogs about how great this idea was, is and belong to the same party. They are in a rut and paralyzed is my thought.

    this whole country is in a rut, and the litigious tantrum of city council’s minority reflects the macro stonewalling of a totally discredited political ideology that needs to get the hell out of the way so we can try to convince our elected representatives to do what we hired them to do.

    perhaps people aren’t trusting in the markets because Wall Street has proven itself to be undeserving of that trust..and with the 2nd quarter profits being announced – huge amounts for banks operating under bailout monies – they’ve got a darn good right for thinking that way, IMNSHO.


    while the scam continues, every little local project is at risk, and every municipality is threatened. too bad our military can’t seek and destroy the financial terrorists instead of the poor pakistani/afghani/iraqi/(iranian?) terrorists.

    i guess until we shift our national priorities, we’ll just have to keep bickering about 400k for affordable housing.

  13. John Wolverton

    Speaking of affordable housing and Russell Street: The State’s “preferred alternative” for Russell calls for the demolition of 17 affordable residences south of 3rd Street and removal of several mobile homes north of 3rd (off the back-side of Mobile City… yes, perplexing isn’t it?). So if the peer review (actually $186 thousand) helps us get a new, rational alternative that better respects our community values; we’ll save affordable housing, lots of money and the Pink Grizzly!

  14. Chuck

    “and let’s be realistic, what will the builders/investors sitting on empty condos do now that the boom is over? will they allow prices to drop, or will they do everything they can to protect the inflated value of their investments?”

    -OPG, NMCDC and the City Council and the bank aka The Developers and investors have just received a bailout which allows them to not let the prices drop and in fact further the protects of inflated values in Missoula. A failure and auction of the properties is one way prices are adjusted downword.

    “guess until we shift our national priorities, we’ll just have to keep bickering about 400k for affordable housing.”

    -I’d much rather see the 400k at 3% go to the families trying to buy one of these units rather then bailout the developers and bank. If the city were to loan me 400k at 3% with no payments for up to 3 years I would have bought them all at a foreclosure auction and resold them to folks meeting the income criteria. That would have helped affordability.

  1. 1 Judge Sherlock to Missoula’s Lawsuiters: Ahhh…Not So Much « 4&20 blackbirds

    […] zoning reform in the City of Missoula. Judge Sherlock has released his 9 page opinion which denies Lawsuiters Dick Haines & Renee Mitchell (Councilpersons for Ward 5) and Ward 4’s Lyn Hellegard their […]

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